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Full Text of SB3592  97th General Assembly

SB3592ham003 97TH GENERAL ASSEMBLY

Rep. Sara Feigenholtz

Filed: 5/30/2012

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 3592

2    AMENDMENT NO. ______. Amend Senate Bill 3592, AS AMENDED,
3by replacing everything after the enacting clause with the
4following:
 
5    "Section 5. The Guardianship and Advocacy Act is amended by
6changing Section 31 as follows:
 
7    (20 ILCS 3955/31)  (from Ch. 91 1/2, par. 731)
8    Sec. 31. Appointment; availability of State Guardian;
9available private guardian. The State Guardian shall not be
10appointed if another suitable person is available and willing
11to accept the guardianship appointment. In all cases where a
12court appoints the State Guardian, the court shall indicate in
13the order appointing the guardian as a finding of fact that no
14other suitable and willing person could be found to accept the
15guardianship appointment. On and after the effective date of
16this amendatory Act of the 97th General Assembly, the court

 

 

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1shall also indicate in the order, as a finding of fact, the
2reasons that the State Guardian appointment, rather than the
3appointment of another interested party, is required. This
4requirement shall be waived where the Office of State Guardian
5petitions for its own appointment as guardian.
6(Source: P.A. 89-396, eff. 8-20-95.)
 
7    Section 10. The Clerks of Courts Act is amended by adding
8Section 27.3f as follows:
 
9    (705 ILCS 105/27.3f new)
10    Sec. 27.3f. Guardianship and advocacy operations fee.
11    (a) As used in this Section, "guardianship and advocacy"
12means the guardianship and advocacy services provided by the
13Guardianship and Advocacy Commission and defined in the
14Guardianship and Advocacy Act. Viable public guardianship and
15advocacy programs, including the public guardianship programs
16created and supervised in probate proceedings in the Illinois
17courts, are essential to the administration of justice and
18ensure that incapacitated persons and their estates are
19protected. To defray the expense of maintaining and operating
20the divisions and programs of the Guardianship and Advocacy
21Commission and to support viable guardianship and advocacy
22programs throughout Illinois, each circuit court clerk shall
23charge and collect a fee on all matters filed in probate cases
24in accordance with this Section, but no fees shall be assessed

 

 

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1against the State Guardian, any State agency under the
2jurisdiction of the Governor, any public guardian, or any
3State's Attorney.
4    (b) No fee specified in this Section shall be imposed in
5any minor guardianship established under Article XI of the
6Probate Act of 1975, or against an indigent person. An indigent
7person shall include any person who meets one or more of the
8following criteria:
9        (1) He or she is receiving assistance under one or more
10    of the following public benefits programs: Supplemental
11    Security Income (SSI), Aid to the Aged, Blind, and Disabled
12    (AABD), Temporary Assistance for Needy Families (TANF),
13    Supplemental Nutrition Assistance Program (SNAP) (formerly
14    Food Stamps), General Assistance, State Transitional
15    Assistance, or State Children and Family Assistance.
16        (2) His or her available income is 125% or less of the
17    current poverty level as established by the United States
18    Department of Health and Human Services, unless the
19    applicant's assets that are not exempt under Part 9 or 10
20    of Article XII of the Code of Civil Procedure are of a
21    nature and value that the court determines that the
22    applicant is able to pay the fees, costs, and charges.
23        (3) He or she is, in the discretion of the court,
24    unable to proceed in an action without payment of fees,
25    costs, and charges and whose payment of those fees, costs,
26    and charges would result in substantial hardship to the

 

 

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1    person or his or her family.
2        (4) He or she is an indigent person pursuant to Section
3    5-105.5 of the Code of Civil Procedure, providing that an
4    "indigent person" means a person whose income is 125% or
5    less of the current official federal poverty guidelines or
6    who is otherwise eligible to receive civil legal services
7    under the Legal Services Corporation Act of 1974.
8    (c) The clerk is entitled to receive the fee specified in
9this Section, which shall be paid in advance, and managed by
10the clerk as set out in paragraph (2), except that, for good
11cause shown, the court may suspend, reduce, or release the
12costs payable under this Section:
13        (1) For administration of the estate of a decedent
14    (whether testate or intestate) or of a missing person, a
15    fee of $100.
16        (2) The guardianship and advocacy operations fee, as
17    outlined in this Section, shall be in addition to all other
18    fees and charges and assessable as costs. Five percent of
19    the fee shall be retained by the clerk for deposit into the
20    Circuit Court Clerk Operation and Administrative Fund to
21    defray costs of collection and 95% of the fee shall be
22    disbursed within 60 days after receipt by the circuit clerk
23    to the State Treasurer for deposit by the State Treasurer
24    into the Guardianship and Advocacy Fund.
 
25    Section 15. The Probate Act of 1975 is amended by changing

 

 

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1Sections 11a-12 and 11a-20 as follows:
 
2    (755 ILCS 5/11a-12)  (from Ch. 110 1/2, par. 11a-12)
3    Sec. 11a-12. Order of appointment.)
4    (a) If basis for the appointment of a guardian as specified
5in Section 11a-3 is not found, the court shall dismiss the
6petition.
7    (b) If the respondent is adjudged to be disabled and to
8lack some but not all of the be totally without capacity as
9specified in Section 11a-3, and if the court finds that limited
10guardianship is necessary for the protection of will not
11provide sufficient protection for the disabled person, his or
12her estate, or both, the court shall appoint a limited plenary
13guardian for the respondent's person or estate or both. The
14court shall enter a written order stating the factual basis for
15its findings and specifying the duties and powers of the
16guardian and the legal disabilities to which the respondent is
17subject.
18    (c) If the respondent is adjudged to be disabled and to be
19totally without lack some but not all of the capacity as
20specified in Section 11a-3, and if the court finds that limited
21guardianship will not provide sufficient is necessary for the
22protection for of the disabled person, his or her estate, or
23both, the court shall appoint a plenary guardian for limited
24guardian of the respondent's person or estate or both. The
25court shall enter a written order stating the factual basis for

 

 

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1its findings and specifying the duties and powers of the
2guardian and the legal disabilities to which the respondent is
3subject.
4    (d) The selection of the guardian shall be in the
5discretion of the court, which shall give due consideration to
6the preference of the disabled person as to a guardian, as well
7as the qualifications of the proposed guardian, in making its
8appointment.
9(Source: P.A. 89-396, eff. 8-20-95.)
 
10    (755 ILCS 5/11a-20)  (from Ch. 110 1/2, par. 11a-20)
11    Sec. 11a-20. Termination of adjudication of disability -
12Revocation of letters - modification.) (a) Except as provided
13in subsection (b-5), upon Upon the filing of a petition by or
14on behalf of a disabled person or on its own motion, the court
15may terminate the adjudication of disability of the ward,
16revoke the letters of guardianship of the estate or person, or
17both, or modify the duties of the guardian if the ward's
18capacity to perform the tasks necessary for the care of his
19person or the management of his estate has been demonstrated by
20clear and convincing evidence. A report or testimony by a
21licensed physician is not a prerequisite for termination,
22revocation or modification of a guardianship order under this
23subsection (a).
24    (b) Except as provided in subsection (b-5), a A request by
25the ward or any other person on the ward's behalf, under this

 

 

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1Section may be communicated to the court or judge by any means,
2including but not limited to informal letter, telephone call or
3visit. Upon receipt of a request from the ward or another
4person, the court may appoint a guardian ad litem to
5investigate and report to the court concerning the allegations
6made in conjunction with said request, and if the ward wishes
7to terminate, revoke, or modify the guardianship order, to
8prepare the ward's petition and to render such other services
9as the court directs.
10    (b-5) Upon the filing of a verified petition by the
11guardian of the disabled person or the disabled person, the
12court may terminate the adjudication of disability of the ward,
13revoke the letters of guardianship of the estate or person, or
14both, or modify the duties of the guardian if: (i) a report
15completed in accordance with subsection (a) of Section 11a-9
16states that the disabled person is no longer in need of
17guardianship or that the type and scope of guardianship should
18be modified; (ii) the disabled person no longer wishes to be
19under guardianship or desires that the type and scope of
20guardianship be modified; and (iii) the guardian of the
21disabled person states that it is in the best interest of the
22disabled person to terminate the adjudication of disability of
23the ward, revoke the letters of guardianship of the estate or
24person, or both, or modify the duties of the guardian, and
25provides the basis thereof. In a proceeding brought pursuant to
26this subsection (b-5), the court may terminate the adjudication

 

 

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1of disability of the ward, revoke the letters of guardianship
2of the estate or person, or both, or modify the duties of the
3guardian, unless it has been demonstrated by clear and
4convincing evidence that the ward is incapable of performing
5the tasks necessary for the care of his or her person or the
6management of his or her estate.
7    (c) Notice of the hearing on a petition under this Section,
8together with a copy of the petition, shall be given to the
9ward, unless he is the petitioner, and to each and every
10guardian to whom letters of guardianship have been issued and
11not revoked, not less than 14 days before the hearing.
12(Source: P.A. 86-605.)".